Have you or a family member recently been arrested for driving under the influence of alcohol or drugs, also known as a DUI, in the state of California? If so, contact our Orange County DUI defense lawyers now for a consultation to protect your legal rights. Our attorney can immediately advise you on how to communicate with investigators, insurance companies, and the various legal consequences following a conviction or a voluntary plea agreement.

DUI convictions in California can carry harsh penalties and steep fines. Besides dealing with legal charges, the DMV’s regulations can be extremely difficult to navigate alone. Although this guide will help you understand the particularities of California’s DUI laws, we highly suggest you contact our attorneys to help you navigate the complicated court systems in order to receive the best possible outcome.

Our attorneys recognize that being arrested for a DUI is a stressful, sometimes embarrassing experience. However, you do not have to face the situation alone. Our attorneys are experienced in representing those facing a DUI conviction, and we have a proven track record of effectively defending driving under the influence related charges. Depending on the circumstances, with a proper defense you may have your charges dismissed or reduced, avoiding the most severe legal consequences of a conviction.

What are the California DUI laws?

Essentially, a person is usually charged for DUI related offenses under two California laws. First, under the California Vehicle Code Section 23152 (a), a person could be convicted of a DUI if the state can prove that the defendant at the time of the arrest was under the influence of alcohol or drugs such that their mental faculties were impaired and affected their ability to operate a motor vehicle. There is not one single test that must be used by the officers involved under this statute to prove your intoxication. Often a field sobriety test at or above the legal threshold could strengthen the prosecutor’s case against you, but other evidence is permissible—such as the horizontal gaze nystagmus test (eye test). In other words, absent proof of a blood or breath test, you could still be convicted of a DUI, which is why it is important to contact a California DUI attorney to potentially prevent this type of evidence being used against you in court, depending on your arresting circumstances.

In addition, under California Vehicle Code Section 23152 (b), a person whose blood alcohol content level (B.A.C.) from the result of breathalyzer or blood test measures .08 percent or higher, could be convicted for driving with an excessive B.A.C.. However, our attorney recognizes that there have been several cases in which the defendant was able to escape a conviction because of errors such as faulty equipment or medical issues that caused the test to produce inaccurate results.

  1. Driving Under the Influence

    1. Applicable Laws

      The following sections of the California Vehicle Code define the offense of Driving Under the Influence:

      1. California Vehicle Code §23152(a)
      2. California Vehicle Code §23152(b)

    2. Summary of § 23152(a), (b)

      California Vehicle Code §23152 provides that a person, who drives a motor vehicle while under the influence of alcohol or drugs, commits the crime of driving under the influence. Section 23152 provides two separate ways by which the State may prove a misdemeanor DUI case and the State may charge a defendant with the offense of driving under the influence under either or both sections.

      To prevail on a charge of DUI under subsection (a), the State must prove the following beyond all reasonable doubt:

      1. The defendant drove a motor vehicle and
      2. At the time of driving, the defendant was under the influence of alcohol

      To prevail on a charge of DUI under subsection (b), the State must prove the following beyond all reasonable doubt:

      1. The defendant drove a motor vehicle and
      2. At the time of driving, the defendant had a blood alcohol concentration level of 0.08 or higher

  2. DUI Under Subsection (a)

    Subsection (a) is the first of the two ways in which the State can prove a defendant violated the law prohibiting driving while under the influence of alcohol or drugs.

    1. Elements Under Subsection (a)

      1. Driving a motor vehicle

        The first element of DUI requires the State to show that the defendant drove a motor vehicle. To satisfy this first element, the State must show some movement of the vehicle1. This element requires that the State show “volitional movement” of the vehicle in question2. California courts have found that a “slight movement” of the vehicle is sufficient to satisfy this element3. Further, movement of the vehicle in question may be proved by circumstantial evidence, which by inference, indirectly proves the defendant was driving4.

      2. Driving While Under the Influence

        The second element of DUI requires the State to prove that at the time driving, the defendant was under the influence of alcohol or drugs. A person is under the influence alcohol, a drug, or combination of both, when as a result of drinking and/or using a drug (illegal or legal) the person’s physical or mental abilities are impaired to such a degree that the person no longer has the ability to drive a vehicle with the caution a sober and ordinary person would use under the same or similar circumstances5.

        To show that alcohol or drugs impaired a defendant’s physical or mental abilities at the time of driving, the State often relies on the subjective, personal observations of the investigating officer. An officer may testify regarding his observation of erratic driving maneuvers, the defendant’s physical appearance, slurred speech, failed field sobriety tests, or other factors tending to show the defendant’s physical or mental state.

    Hence, under subsection (a), a person with an unknown BAC level or a BAC below 0.08 may still be found to be under the influence, if based on the subjective factors listed above, a judge or jury finds the person’s mental or physical abilities were impaired due to alcohol and/or drugs.

  3. DUI Under Subsection (b)

    1. Elements Under Subsection (b)

      1. Driving a motor vehicle

        As above, this element is satisfied by evidence that defendant caused a volitional movement of the vehicle. As under subsection (a), the State cannot obtain a conviction for DUI under subsection (b) unless the driving element is satisfied6.

      2. At the time of driving, defendant had a BAC% of 0.08 or higher

        Subsection (b) provides the State with an objective test by which to prove the offense of DUI. To obtain a conviction, the State must prove that at the time of driving a motor vehicle, a defendant’s blood alcohol content was 0.08 or higher.

        Under subsection (b), the law presumes that if a person’s BAC is 0.08% or greater at the time of a blood or breath test, the person is guilty of DUI, regardless of whether she was actually experiencing the physical or mental effects of alcohol and/or drugs.

        It is possible for a person to be intoxicated with a BAC level below 0.08. On the other hand, it is also possible for a person to be above that level while maintaining normal mental or physical faculties. However, once a level of 0.08 is proved, a judge or jury may (but is not required) to infer that the person’s physical or mental abilities were impaired as required for a DUI conviction.

        A toxicology report is frequently used as evidence showing that the defendant’s BAC% was 0.08 or higher at the time of driving—not the time at which the test was administered. An expert may testify as to calculation methods that may establish the defendant’s BAC% at the time of driving regardless of the levels present at the time of the test.

    2. Blood, Breath, or Urine Testing and Consent

      A defendant’s BAC% is established by executing a blood or breath test. By driving within the state of California, a driver is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood7.

      Prior to arrest, submission to taking such a test is voluntary but upon arrest, refusal to complete the required test subjects the defendant to fines, license suspension, and even imprisonment upon conviction8. Upon being arrested, an arrestee has the right to choose between a blood or breath test and the arresting officer must inform the arrestee of her right to choose9. If a blood or breath test cannot be administered, the driver is also deemed to have consented to taking a urine test and must take the urine test10. These additional punishments are further discussed under the punishment section below.

  4. Penalties

    Upon a person’s first conviction for DUI, California Vehicle Code provides for the following punishments:

    1. First DUI Conviction:

      A person is subject to imprisonment in state prison or county jail for a minimum of 90 days not to exceed one year, with at least 48 hours served continuously11. In addition, persons convicted of a first DUI offense are also subject to a minimum fine of $390.00, not to exceed $1,000.0012. Further, the person's driver’s license will be suspended by the Department of Motor Vehicles for a period of four months13. If granted, probationary periods for misdemeanor DUI convictions range from three to five years14.

      However, a license suspension period of six months and additional fines will be imposed if the person refused testing at the time of arrest or was administratively found to have driven with a BAC% of 0.08 or higher within the last ten years15.

      Unless a person’s license was suspended for having a BAC% of 0.08 or higher, a restricted driver’s license may be issued upon the payment of fees, submission of proof of financial responsibility, and completion of a driving-under-the-influence course16.

    2. Second DUI Conviction:

      A second conviction for DUI within ten years will carry the same penalties as a first conviction with the exception that the driver’s license suspension period is extended to one year17.

    3. Third DUI Conviction:

      Upon conviction for a third DUI within ten years of two separate DUI offenses, the penalty period of imprisonment in county jail increases to at least 120 days, not to exceed one year18. The person’s driver’s license will be revoked, and the driver will be designated a habitual offender for a period of three years after conviction19.

  5. Felony1 DUI

    Upon receiving a fourth conviction for DUI within ten years of three separate DUI offenses, the State has the discretion to charge the person with either a misdemeanor DUI or felony DUI20. Additionally, the offense may be charged as a felony if the offense resulted in the death or injury to a third person21. A person convicted of a felony DUI and may be subjected to imprisonment for a period up to three years, designation as habitual offender, and revocation of driver’s license for four years22.

    The person’s driver’s license will not be reinstated until the person files proof of financial responsibility and submits proof of successful completion of an 18-month driving-under-the-influence program or, if available, a 30-month driving-under-the-influence program23.

  6. Marijuana DUI and Possession of Marijuana While Driving

    1. Applicable Law

      The following provisions sections of the California Vehicle Code define the offense of marijuana DUI and possession of marijuana while driving:

      1. California Vehicle Code 23152 (e)
      2. California Vehicle Code 23222 (b)

      As with alcohol, California Vehicle Code 231152 criminalizes the act of driving while under the influence of any drug, including marijuana. Possession of marijuana while driving is similar to marijuana DUI, but is a separate offense under section 23222(b) of the Vehicle Code.

    2. Marijuana DUI


      Marijuana DUI can be proved by the State under California Vehicle Code §23152 (a) by showing the following elements:

      1. The defendant drove
      2. At that at the time of driving, and
      3. Due to marijuana use,
      4. The defendant’s physical or mental abilities were impaired
      5. To the degree that she no longer had the ability to drive a vehicle with the caution a sober and ordinary person would use under the same or similar circumstances24.

      Manner of Proof

      Unlike alcohol, there is no set amount of marijuana in the bloodstream that can be used to establish impairment25. As such, marijuana DUI must be shown under subsection (a) of California Vehicle Code §23152 through the use of subjective evidence such as the defendant’s physical appearance, manner of speech, and behavior.


      The penalties for a conviction of marijuana DUI are the same as those applicable to alcohol DUI cases, as discussed above. As with alcohol, if a marijuana DUI offense results in the death or injury of a third party or the conviction occurs within ten years of three separate prior DUI convictions, the State may charge the offense as a felony, subjecting the defendant to the possibility of facing the more serious penalties discussed above.

      Medical Marijuana Card

      Legitimately possessing a medical marijuana license is not a defense to marijuana DUI because Vehicle Code §23152 prohibits driving while under the influence of marijuana as a drug—not its possession. Even over the counter drugs can result in a DUI conviction if their use caused impairment to the driver’s abilities such that she could no longer drive with the caution of a sober and ordinary person in similar circumstances. As such, the legality of possessing the marijuana is irrelevant as it is the defendant’s physical and mental state that is determinative.

    3. Possession of Marijuana While Driving


      California Vehicle Code §11357(b) prohibits a person from possessing marijuana amounting to less than one ounce while driving a motor vehicle. To prove the offense, the State must show that the defendant was driving; that while driving, the defendant possessed marijuana and; that the amount of the marijuana was less than one ounce.

      Manner of Proof

      Driving the vehicle is shown in the same manner as discussed above, where a volitional movement of the vehicle is required. Possession is found by showing that the defendant had control over the marijuana.

      Control can be found by showing that the defendant had direct, physical control over the substance, such as if a defendant was seen driving while holding a lit joint (actual control). Control can also be established by showing that the defendant had access to the marijuana and a right to control it26. An example of this type of possession is where marijuana is found inside a bag owned by the defendant in the backseat of the vehicle defendant was driving (constructive control).


      Under §11357(b), possessing marijuana while driving is punishable as an infraction carrying a $100 fine27>.

      Medical Marijuana Card

      The possession of a legally issued medical marijuana identification card is a defense to the charge of possession of marijuana while driving. California Vehicle Code §11357(b) criminalizes the state of illegally owning or controlling marijuana regardless of whether the person has used the substance. But if the person can show that her ownership or control of the marijuana is legal, then her possession of the substance is not illegal and not subject to the provisions of §11357(b).

      A California medical marijuana user or caregiver can assert this defense as such persons must be able to transport the drug from the dispensary in order for the drug to be used for medical purposes28.

What are the penalties if you are convicted for a DUI?

California DUI law is complicated and potential punishments depend on a wide range of factors. Generally, the range of possible sentences includes:

First DUI Misdemeanor Conviction:

  • Sentenced up to six months jail confinement,
  • 3 – 5 year probationary period,
  • Court ordered fines in the range of $350 - $1,000 fines
  • Mandated three – nine months in an alcohol/drug treatment program,

Because California DUI law makes it tougher on persons who have prior related convictions, a DUI conviction within ten years could result in the following:

  • Fines in the range of $390 - $1,000,
  • Sentenced to serve a minimum of 96 hours to one year confinement in a county jail,
  • 3 – 5 year summary probationary period,
  • Mandated completion at a California DUI School for a period of either 18 months or 30 months

Third DUI Misdemeanor Conviction:

  • Summary probation for a period of 3 – 5 years,
  • Sentenced to confinement in a county jail for a period of a minimum of 120 days to a maximum of one year,
  • Fines in the range of $390 - $1,000
  • Mandated 30-hour California court-approved DUI School,
  • Designation as a Habitual Traffic Offender (HTO) in the California DMV database

Beyond these possibilities, you may be subjected to having to an interlock ignition device installed in your vehicle. Also, the California DUI law triggers a civil case against you because your driver’s license will be suspended for at least a temporary period. If you wish to have your driving privileges restored, you will have to file for a hearing with the DMV. Since the law only allows you a short period to request this hearing, you will need to consult with an attorney immediately after your arrest. Our attorney can help you get your driver’s license back and could also get you a restricted driver’s license in the event there are other incidents which could be a barrier to restoration of your license.

What are the California DUI defenses?

Our criminal defense attorney knows that the penalties for a DUI conviction are tough, which makes it critical for you to have the representation from an attorney who is experienced with these types of cases. Our attorney is well aware of the different legal defenses to fight your charge.

  • In general defendants in a California DUI case have a wide range of defenses available to challenge their charge, including:
  • Faulty Breathalyzer and Blood Test Equipment
  • Law Enforcement Errors (such as the failure to conduct an appropriate standardized field test)
  • False BAC Result due to residual mouth alcohol
  • Breath Test was not properly calibrated
  • The arresting officer did not have reasonable cause to stop you

The criminal defense attorney at the Johnson Criminal Law Group is proud to represent all those who have been charged with a DUI offense in our area. We understand that a DUI conviction can carry life-altering results. If you or a family member has been arrested for driving under the influence, get in touch with our Orange County criminal attorney as soon as possible after the arrest to ensure that your rights are protected. We can be reached by phone at 949-622-5522, or you can send us a message online today.

1People v. Wilson, (1985) 176 Cal.App.3d Supp. 1.
2 Mercer v. DMV, (1991) 53 Cal. 3d 753.
3 Wilson, 176 Cal. App.3d Supp. 1
4People v Gapelu, (1989) 216 CA3d 1006, 1009 (defendant who was found standing alone next to the vehicle after the accident and whose injuries were consistent with having sat in the driver's seat was properly found to be the driver).
5CALJIC 16.831
6See section II for discussion of driving element.
7Cal. Veh. Code §23612 (a)(1)
8Cal. Veh. Code §(a)(1)(D)
9Cal. Veh. Code §23612 (a)(2)(A)
10Cal. Veh. Code §23612 (d)(2)
11Cal. Veh. Code §23536 (the court may schedule prison time around a person’s work schedule if the required forty eight hours of continuous imprisonment interfere with the person’s work).
12Cal. Veh. Code §23536.
13Cal. Veh. Code §13353.3(b)(1).
14Cal. Veh. Code §23600.
15Cal. Veh. Code §13353.3(b)(2).
16Cal. Veh. Code §13352.4(a)(1)-(3).
17Cal. Veh. Code §23540 (a).
18Cal. Veh. Code §23546 (a).
19Cal. Veh. Code §23546(b).
20Cal. Penal Code §1170 (h).
21Cal. Veh. Code §23153; Cal. Penal Code §191.5.
22Cal. Veh. Code §§2355,13352 (a)(7).
23Cal. Veh. Code §13352 (a)(7).
24CALJIC 16.831.
25See Cal. Veh. Code §23152(b).
26People v. Showers, (1968) 68 Cal.2d 639, 643-644
27Cal. Veh. Code §23222(b).
28See People v. Wright, (2006) 40 Cal.4th 81, 93.

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